ECtHR - Sharifi and Others v Italy and Greece (no. 16643/09) [Article 2, 3, 13, Article 4 Protocol 4], 21 October 2014

In a case which emphasises that Member States of the EU cannot eschew from their obligations under the European Convention of Human Rights when implementing EU law, the European Court of Human Rights (ECtHR) has unanimously found Italy to be in violation of the prohibition of collective expulsion of aliens (Article 4 of Protocol 4 European Convention of Human Rights) as well as the prohibition of inhumane and degrading treatment (Article 3) and the right to an effective remedy (Article 13) by returning a group of Afghan asylum applicants to Greece. In turn, the Court has ruled that Greece had also breached Article 2 and 13 read in conjunction with 3 given the lack of access to the asylum procedure in Greece and the risk of deportation to Afghanistan.

Submissions concerning Greece relate to a risk of an Article 3 violation in the case of forced expulsion to Afghanistan, a lack of access to the asylum procedure in Greece and inhumane conditions within Greek detention centres. In response, the Court firstly looks at the breach of an effective remedy. Noting that the general situation of insecurity in Afghanistan highlighted in its case M.S.S v Belgium and Greece had not changed, the Court submitted that a thorough analysis of each applicant’s situation had to be undertaken in conformity with Article 13. This analysis, the Court notes, has to have regard to the practical access to a remedy along with the provision of clear legal advice. Moreover, an effective access to the asylum procedure including exhaustive and comprehensible information is clear from a reading of EU asylum instruments. However, since the Greek asylum procedure was characterised by a lack of material resources, i.e. information, interpreters, legal aid and excessive delays in the rendering of decisions, the Court rules that Article 13 read together with Article 3 has been breached by the Greek authorities. The Court somewhat surprisingly further finds that the claimants submissions concerning detention conditions had not been fully substantiated, thus a finding of an Article 3 breach could not be found.

As to the claimants’ arguments concerning Italy, the Court found that by expelling the applicants to Greece, Italy ran the risk of indirectly refouling the applicants to Afghanistan. Given that no opportunity was presented to the applicants to complain of their transfer to Greece nor were details taken as to the identities of some, the Italian actions constituted an indiscriminate and collective expulsion to Greece, thus breaching Article 4 of Protocol 4. Reiterating the statements given by third parties, the Court highlighted that interception at Adriatic ports by Italian authorities had taken place in the past and in the present case the applicants upon arrival to Italy were immediately sent back to Greece, denying them the possibility of applying for asylum and their procedural and material rights. Stressing that EU Member States have an obligation to assess the risk of Convention violations when implementing the Dublin Regulation, the Court further found, in line with both M.S.S and Hirsi Jamaa and Others v Italy, that it is for the refouling State to assure that the receiving State offers sufficient guarantees that an individual will not be removed without an assessment of the risks faced in their country of origin. Thus, given the finding that Greece violated Article 13 read in conjunction with Article 3 Italy ran the risk of indirectly refouling the applicants to Afghanistan via Greece and had itself breached both Article 3 and 13 of the ECHR.

Based on an unofficial ELENA translation from French

31 October 2014                                            

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.